Alba v. Singer , 755 N.Y.S.2d 837 ( 2003 )

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered January 8, 2002, which, to the extent appealed from, granted defendants’ motion to vacate their default in appearance and deemed their answer timely served, unanimously modified, on the facts and in the exercise of discretion, to condition the relief afforded defendants upon their stipulation, within 20 days of service of a copy of this order, with notice of entry, to the court’s jurisdiction over their persons, and withdrawal of their sixth affirmative defense with prejudice, and otherwise affirmed, without costs.

While we agree with the motion court that it is preferable that this matter be decided on its merits (see Cappel v RKO Stanley Warner Theaters, 61 AD2d 936, 937 [1978]; see also Matter of Murray v Matusiak, 247 AD2d 303, 304 [1998]), under the circumstances presented, we find it appropriate to condition the relief afforded (see CPLR 5015 [a]) upon defendants’ agreement to submit to the court’s jurisdiction. Concur— Mazzarelli, J.P., Andrias, Saxe, Ellerin and Williams, JJ.